Due Process & protecting unpopular characters
Dissent, Protest, & Justice Series 003.
Originally posted on Facebook 25 Jul 2020
George Floyd, General Flynn, Ghilsane Maxwell, and Portland rioters are reminders that rights must apply to all people, not just people we approve of, or even just ‘good’ people.
In the old west, people could be designated ‘outlaws’ and thereby be denied the protection of the law. Although not overtly, this approach is beginning to infect public debate and the behaviour of the state.
The fact that George Floyd held a gun to a pregnant woman’s stomach while his friends robbed her house, is not a justification or a mitigation for his murder. Floyd may have been an unpleasant individual (though he may also have been, like the rest of us, a person who sometimes did the wrong thing, and sometimes the right thing), but that is irrelevant to the assessment of his murder. Those that cite his inglorious past as if it lessens the horror of an eight minute suffocation of someone calling for their mother, are misguided. If the law and the system don’t protect even the worst of us, then we don’t live under the law, but under the capricious whim of those in authority. That’s not just the whim of the President, but of tens of millions of officials: police, regulators, social services, homeland security, environmental protection. All have their proper roles and power under the law, but, if the law ceases to be a constraint on them, they become judge, jury and executioner (sometimes literally).
General Flynn’s apparent aversion to the 1/4 of the world population identifying as Moslem is not a great recommendation. But neither should it trigger malicious pursuit by the authorities or the suspension of the normal rules. President Obama proclaimed himself ‘not a fan’ of Flynn, and suggested President-Elect Trump should reconsider Flynn’s appointment. When that didn’t happen, the FBI targeted Flyn. They did not have evidence of any wrongdoing, but rather had the objective of getting Flynn and used their powers to find an excuse, or manufacture one. They denied him the usual processes of issuing cautions, they tampered with and destroyed versions of their own interview notes. Their own agents after interview said they believed there had been no crime, but senior management kept the case alive and blackmailed Flynn into pleading guilty by threatening to go after his son if Flynn maintained his innocence. Flynn’s own lawyers seem to have been complicit in persuading him to plead guilty. And when the justice department finally disclosed the exculpatory documents and dropped their prosecution, the Judge took it upon himself to pretend he was a napoleonic investigating magistrate, rather than a common law judge, and refused to dismiss the case, even when told to do so by the Appeal Court. As with George Floyd, detractors have tried to excuse or downplay the abuse of state power, because they don’t like Flynn, and supporters have tended to cite Flynn’s achievements as aggravating factors in the injustice. Both sides are building their castles on sand. This is not about the merits or demerits of the national security policies that Flynn would have advanced. If that is the debate, we may as well be in China or the Soviet Union. What sets the Anglo Saxon common law jurisdictions apart should be the law’s protection of the disfavoured just as much as of insiders who have the approbation of officialdom.
Were I a resident of Portland, hoping to go about my life peacefully and unmolested, I would be terrified of the rioters who seem to have official backing from the Mayor and Governor. A system that should be protecting the inhabitants and their property appears to have been hijacked, with city and state leaders siding against homeowners and with those attacking them. Against this backdrop, it might be tempting to support the Federal authorities that seem to be the only ones intervening against apparent wrongdoers. But giving in to that temptation would be a mistake. What is needed in Portland is the application of the law without fear or favour. If the reports are true about federal officers without the usual ID on their uniforms, snatching people from the streets and detaining them without charge or access to legal representation, then the Federal authorities are not engaged in law enforcement. Rather, they have turned the riots into a gang war in which rioters fight the feds, with the two sides distinguished only by differing tribal allegiances, rather than differing approaches to the law. If you are a friend of the USA, this can’t end well.
The USA goes into the second half of an election year with the two main parties having nailed their colours to the mast of fundamentally unconstitutional positions.Trump proclaims support for Law & Order, but disregards the law because he equates the law with ‘getting the bad guys’. And Biden opposes law enforcement, which he equates with paramilitary excess, while refusing to recognise that absent the rule of law, we leave unconstrained power in the hands of those most prepared to be violent: BLM supporters administering beatings against those who refuse to declare allegiance to their cause, and thinking that they advance something good by social media posts of them kneeling on the neck of a crying white toddler: punishment for the original sin of not being born non-white.
The division of the world into ‘good’ people in our own camp, and ‘bad’ people associated with ‘the other’ (whatever ‘the other’ might bet) is also evident n the case of Ghilsane Maxwell. Maxwell’s father was notorious for robbing pension funds, and her friend Epstein seems to have been a trafficker in children for rape (based on past convictions even if we don’t treat as proven the crimes for which his suicide/suiciding prevented coming to trial), but she is legally innocent until proved guilty. She is accused of helping Epstein, and conspiring with him, but Epstein is now dead, and there is no suggestion that without him she would reoffend, far less that she would reoffend if granted bail. And she voluntarily returned to the USA, so we can’t assume that she would flee the country of granted bail. Yet she is held on remand, seemingly by way of pre-conviction punishment, rather than because of any demonstrable risks from granting her bail. The crimes of which she is accused are so dire, and so high profile, that she is now categorised as a ‘bad person’ who should not benefit from the old fashioned presumptions of innocence laid down in 1215.
A similar ‘rip up the rules and due process because she is a bad person’ approach is seen with the dreadful Ms Begum who has been stripped of her British citizenship without a trial let alone any conviction for a crime. From what I have read, she seems to be quite horrendous, participation in selling Yazidi children for rape and sewing reluctant Syrian children into boobytrapped un-removable suicide vests, is an almost unbelievable level of evil. I can’t imagine what could turn someone into such a monster. But she is still human, and still deserves due process.
History is all too full of tyrants building their popularity by demonising some group and persuading their followers that the problem lies with an ‘outsider’ group best seen as not wholly human and not deserving of the protections and rights that the majority expect. The ‘outsiders’ demonised as sub human have been variously: heretics circulating copies of The Bible translated into the common peoples’ language (rather than kept in Latin), Palestinians, communist sympathisers (in the McCarthy era), conservative intellectuals (in modern US academia), homosexuals, those that oppose homosexuality, those defining fairness as the equal treatment of all races, those defining injustice as the equal treatment of all races, Jews, Kulaks, Tutsis, indigenous Africans hoping for self government, white farmers.
Unless we recognise rights as being rooted in a person’s innate status as human, rather than deriving from the person’s virtue, we enter a very dangerous realm. Ms Begum’s alleged crimes are monstrous, but who gets to say that she should be treated as guilty without the issue being proved in court? And, once an extreme case like Ms Begum is used to justify the arbitrary suspension of rights, how and where does one draw the line? Either we follow due process, or an adversary can deny anyone their rights simply by claiming that a particularly dreadful crime has been committed. Someone steals £10 and they are entitled to a trial, but if the prosecutor claims that the victim not having the £10 denied the victim the means to buy life saving medicine, the accused is portrayed as potentially having caused a death, should that mean that there is no longer any need or right to a trial?
We need to insist on fair and even handed application of just laws to Ms Begum and General Flynn, not in proportion to the sympathy we have for them as individuals, but because if these demonised people can have their rights suspended, so can anyone else.
Laws, like most human creations, tend to be flawed. From the Bible we remember the 10 commandments, and Jesus’s eleventh ‘Love thy neighbour as thyself’. We forget the hundreds of petty rules of the Old Testament, that it is an abomination to eat shellfish, etc. Today’s laws are all too often the modern equivalent of criminalising the eating of a prawn sandwich rather than the uncontroversial ‘Thou shalt do no murder’. So the law falls into disrepute, and Hollywood has spent decades building heroes from cops who throw out the rule book to run down the baddies. Hollywood is a persuasive salesman, but it has been peddling a siren song, and we will be sunk on the rocks if we allow ourselves to follow it. Absence of the law will not mean an absence of petty rules, but (as seen in the Seattle autonomous zone) will allow the strong to be petty, arbitrary and capricious. An analogy is Chesterton’s observation that “When men choose not to believe in God, they do not thereafter believe in nothing, they then become capable of believing in anything”